Stuart Bormann v Visy Board Pty Ltd
[2011] FWA 587
•28 JANUARY 2011
[2011] FWA 587 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stuart Bormann
v
Visy Board Pty Ltd
(U2010/12421)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 28 JANUARY 2011 |
Termination of employment - extension of time.
[1] On 15 September 2010 Mr Bormann lodged an application pursuant to section 394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with Visy Board Pty Ltd (Visy Board).
[2] Mr Bormann's application was not resolved through the conciliation process and was ultimately referred to me for arbitration. At the commencement of proceedings on 19 January 2011, I directed the attention of the parties to the requirements of s.396 of the FW Act which states:
“396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[3] On the information before me the application appeared to have been lodged outside of the 14 day time limit specified in s.394(2). The hearing of the merits of the application was subsequently adjourned pending the determination of the extension of time issue, on 27 January 2011. This decision deals with this extension of time issue.
[4] At the hearings on this matter Mr Bormann was represented by Mr Hardie of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Visy Board was represented by Mr Colgrave, of counsel.
[5] A brief background of Mr Bormann’s applications is set out below.
[6] Mr Bormann was employed by Visy Board from 1989. He has experienced a number of back and arm injuries accepted as compensable injuries and, in 2008 sustained a further injury as a result of a non-work-related activity. He received income protection insurance payments from November 2008 relating to a non-work injury. Income protection payments were terminated following a conclusion that Mr Bormann was able to return to work. Mr Bormann returned on a graduated work programme in September 2009 but, following advice which he provided to Visy Board of ongoing pain, he was stood down without pay in December 2009.
[7] Visy Board terminated Mr Bormann's employment by way of a letter dated 30 August 2010. This letter states:
“We refer to our correspondence of 4th February 2010 wherein we advised you that we would consider waiting for the outcome of your workers compensation claim and income protection claim before determining the status of your employment.
We have since had no further contact or correspondence from you in relation to these matters despite early seven months elapsing since our letter to you.
We are most disappointed that you have not kept us informed of the progress of your workers compensation and income protection claims or provided us with any additional information in relation to your general capacity for work.
In the circumstances, we consider that we have no choice but to terminate your employment forthwith without further notice to you.
We shall pay your statutory entitlements into your bank account and, by separate letter, provide you with a statement and Centrelink separation certificate.”
[8] There is no dispute that Mr Bormann received this letter on 31 August 2010.
[9] It is also appropriate that I note that Mr Bormann has outstanding claims for both worker’s compensation and income protection insurance.
The extension of time submissions
[10] The primary position put on behalf of Mr Bormann was that the termination of his employment occurred without notice when, pursuant to the National Employment Standards, he was entitled to 5 weeks notice or payment in lieu thereof. Consequently, it was argued that the earliest date for the termination of his employment was five weeks after 31 August 2010, meaning that the application was within time.
[11] A second construction of this primary position was that, had Visy Board properly complied with the notice provisions in the National Employment Standards, Mr Bormann would have been able to lodge his application within time and, that accordingly, an extension of time was warranted.
[12] The alternative position, put on behalf of Mr Bormann, was that he acted on 1 September 2010, the day after his dismissal, to contact the AMWU and was subsequently advised of a meeting date with Mr Hardie and a lawyer on 14 September 2010. In the meantime, Mr Bormann took steps to challenge the termination of his employment directly with Visy Board.
[13] Mr Hardie advised that the delay in meeting with Mr Bormann was the result of a backlog of work associated with his recent appointment to the AMWU and should properly be regarded as representative error such that Mr Bormann should not be disadvantaged as a consequence.
[14] The Visy Board position was that it rejected the proposition that the termination of Mr Bormann's employment breached the National Employment Standards or that there was any capacity to deem Mr Bormann to be employed beyond 31 August 2010. Visy Board agreed that Mr Bormann's employment was terminated with effect from 31 August 2010 and did not dispute his actions in approaching the AMWU and separately challenging the termination of his employment. Visy Board did not argue that the granting of an extension of time would represent a prejudice but submitted that none of the circumstances of Mr Bormann’s situation could properly be called exceptional. In terms of the merits of Mr Bormann's application, Visy Board asserted that the sole remedy which Mr Bormann sought, being reinstatement in a stood-down capacity rendered the application nugatory such that the granting of an extension of time was inappropriate. In this respect Visy Board argued that Mr Bormann's rights to claim worker’s compensation and/or income protection insurance were not affected by his dismissal and that a medical assessment that he would not be capable of returning to work, meant that any reinstatement could have no practical effect.
Findings
[15] Section 394(3) states:
“394 Application for unfair dismissal remedy
....
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[16] I am unable to accept the primary position put by Mr Bormann to the effect that no extension of time is necessary as the effect of the notice requirements specified in s.117 means that Mr Bormann was entitled to 5 weeks notice or payment in lieu thereof, and that, as this requirement was not met he was effectively deemed to be still employed for the duration of this additional five weeks. The issue of whether the National Employment Standards obligated Visy Board to give or pay for notice is a matter entirely separate from the actual termination of Mr Bormann's employment. That termination took effect from when Mr Bormann received the termination of employment advice on 31 August 2010. There is no capacity for him to be deemed to be employed after that date.
[17] This means that the application was lodged one day outside of the time specified in s.394.
[18] In considering whether or not Mr Bormann's delayed application represents exceptional circumstances, I am required to have regard to the overall circumstances of the situation, including the facts specifically identified in s.394(3). The concept of exceptional circumstances was recently addressed by a Full Bench of Fair Work Australia in Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Smithers 1 in the following terms:
“Section 394(3) requires a decision by the FWA member as to whether they are satisfied there are exceptional circumstances taking into account the matters in s.394(3)(a) to (f).
The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[19] I have adopted this approach and have considered each of the factors specified in s.394(3) in this context.
Reason for the delay
[20] To the extent that Mr Bormann argues that Visy Board’s failure to give notice consistent with the National Employment Standards represents the reason for the delay, this cannot be the case. It is the actions and the circumstances of Mr Bormann and his representative which must be considered.
[21] The one day delay in lodgement of the application was due to delays in actioning the matter on the part of the AMWU. These delays primarily constituted a delay in responding to Mr Bormann's request for a meeting, and then a short delay in lodging the application.
[22] Mr Bormann took action to seek the assistance of the AMWU the day after he was dismissed. He advised the AMWU of his position. Some days after making this request, he was advised of the meeting arrangement for 14 September 2010. The AMWU lodged the application on the following day.
[23] I consider that, in this respect, the actions of the AMWU constituted representative error. Consistent with the approach adopted by a Full Bench of the Australian Industrial Relations Commission in Burns v Aboriginal Legal Service of Western Australia (Inc) 2, the delay caused by the AMWU represents a consideration which mitigates in favour of an extension of time being granted.
Awareness of the dismissal
[24] The termination of Mr Bormann's employment took effect on 31 August 2010 when he received advice of this dismissal. I have noted that this advice was dated 30 August 2010, but do not consider this to be a significant issue in these circumstances.
Action taken by Mr Bormann
[25] Mr Bormann took action to seek the assistance of the AMWU on 1 September 2010. He met with the AMWU as requested on 14 September 2010 and authorised the lodgement of the application. There is no dispute that he has continued to dispute the termination of his employment.
Prejudice to the employer
[26] Whilst it opposed the granting of an extension of time, Visy Board did not lodge an objection to the application on that basis and did not assert that the granting of a one-day extension of time would represent a prejudice to the employer.
Merits of the application
[27] Mr Bormann seeks reinstatement but acknowledges that, in this event, he will remain stood-down without pay. He seeks the restoration of his employment standing until at least his worker’s compensation claim is finalised. Mr Bormann argues that the termination of his employment was substantively and procedurally unfair.
[28] I have considered the Visy Board submission that Mr Bormann's actions frustrated the contract, that the remedy sought renders the application nugatory and that, accordingly, an extension of time should not be allowed.
[29] The utility of the remedy sought may be the subject of some debate. On the information before me the fairness of the termination of Mr Bormann's employment can be argued from different perspectives. I do not consider that the merits of the matter, or the remedy sought in this instance, represents a sufficient foundation for the refusal of an extension of time which would have the effect of depriving Mr Bormann of the opportunity to fully ventilate these issues in a hearing.
Considerations of fairness
[30] This factor could be considered from two perspectives. In situations where multiple employees are dismissed by an employer, it could allow comparisons of employee situations. This is not applicable here. Secondly, it could be regarded from a broader perspective.
[31] I prefer this latter construction. Representative error - particularly as it explains a very short delay, has commonly been accepted by Fair Work Australia and the Australian Industrial Relations Commission as a factor supporting an extension of time.
Conclusion
[32] Having considered each of the factors set out in s.394(3), I have concluded that Mr Bormann's situation, and particularly the delays in acting on the part of the AMWU are properly regarded as sufficiently exceptional to warrant the granting of an extension of one day.
[33] An Order to this effect will be issued.
Appearances:
T Hardie, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) representative on behalf of the Applicant.
I Colgrave, counsel for the Respondent.
Hearing details:
2010.
Adelaide:
January 19 and 27.
SENIOR DEPUTY PRESIDENT
1 [2010] FWAFB 7251 paras [4] and [5]
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